EXHIBIT 1
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STOCK PURCHASE AGREEMENT
by and between
FBOP CORPORATION
or its Affiliate(s)
and
BIL SECURITIES (OFFSHORE) LTD.
Dated as of November 7, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
PURCHASE AND SALE................................................... 1
1.1 Purchase and Sale............................................. 1
1.2 Delivery of Shares............................................ 1
1.3 Assignment of Rights.......................................... 1
1.4 Purchase Price................................................ 2
ARTICLE II
CLOSING............................................................. 2
2.1 Closing....................................................... 2
2.2 Extension of Closing Date..................................... 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER........................ 2
3.1 Organization and Standing of Seller........................... 2
3.2 Due Authorization............................................. 3
3.3 Consents and Approvals........................................ 3
3.4 Defaults and Conflicts........................................ 3
3.5 Share Ownership............................................... 3
3.6 Related Party Transactions.................................... 4
3.7 Information for Regulatory Approvals.......................... 4
3.8 Finders and Investment Bankers................................ 4
3.9 Disclosure.................................................... 4
3.10 No Conflict of Interest....................................... 5
3.11 Goodwill Litigation........................................... 5
3.12 Agreements.................................................... 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER......................... 6
4.1 Organization of Purchaser..................................... 6
4.2 Authorization................................................. 6
4.3 Consents and Approvals........................................ 6
4.4 Defaults and Conflicts........................................ 6
4.5 Finders and Investment Bankers................................ 6
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ARTICLE V
INFORMATION......................................................... 7
ARTICLE VI
COVENANTS OF SELLER................................................. 7
6.1 Exclusivity................................................... 7
6.2 Actions of Seller............................................. 8
6.3 Notice........................................................ 8
6.4 Supplemental Information; Disclosure Supplements.............. 8
ARTICLE VI-A
COVENANTS OF PURCHASER.............................................. 8
6.A.1 Limitation on Additional Purchases............................ 8
6.A.2 Share of Profits.............................................. 8
6.A.3 Supplemental Information...................................... 9
6.A.4 Application................................................... 9
ARTICLE VII
COOPERATION......................................................... 9
7.1 Reasonable Efforts............................................ 9
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER................ 9
8.1 Representations, Warranties and Covenants..................... 9
8.2 Adverse Changes............................................... 10
8.3 Absence of Litigation......................................... 10
8.4 Certificates.................................................. 10
8.5 Schedules..................................................... 10
8.6 Closing Date.................................................. 10
8.7 Regulatory Approvals.......................................... 10
8.8 Transfer of Securities........................................ 10
8.9 Stockholders' Agreement; Voting Agreement..................... 11
8.10 Other Documents............................................... 11
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ARTICLE IX
CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE SELLER......................................... 11
9.1 Representations, Warranties and Covenants.................. 11
9.2 Absence of Litigation...................................... 11
9.3 Closing Date............................................... 11
ARTICLE X
TERMINATION....................................................... 11
10.1 Termination................................................ 11
10.2 Effect of Termination...................................... 12
10.3 Breach; Specific Performance............................... 13
ARTICLE XI
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES, INDEMNIFICATION................................... 13
11.1 Survival of Representations and Warranties................. 13
11.2 Indemnification............................................ 13
ARTICLE XII
MISCELLANEOUS..................................................... 14
12.1 Binding Effect............................................. 14
12.2 Expenses................................................... 14
12.3 Notices.................................................... 14
12.4 Counterparts............................................... 15
12.5 Captions................................................... 15
12.6 Amendments, Supplements or Modification.................... 15
12.7 Applicable Law............................................. 15
12.8 Construction of Agreement.................................. 15
12.9 Effect of Investigation.................................... 15
12.10 Waivers.................................................... 16
12.11 Assignment................................................. 16
12.12 No Third Party Beneficiaries............................... 16
12.13 Severability............................................... 16
12.14 Remedies Cumulative........................................ 16
12.15 Entire Agreement........................................... 16
12.16 Schedules.................................................. 16
12.17 Press Releases; Confidentiality............................. 16
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AGREEMENT
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THIS AGREEMENT (the "Agreement") is made and entered into as of November 7,
2000 by and between FBOP CORPORATION, an Illinois corporation (the "Purchaser")
or its Affiliate(s) and BIL Securities (Offshore) Ltd. ("Seller").
WITNESSETH:
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WHEREAS, Seller is the owner of 1,912,272 issued and outstanding shares of
common stock, $0.01 par value per share (the "Shares") of PBOC Holdings, Inc., a
Delaware corporation (the "Holding Company");
WHEREAS, the Holding Company owns 100% of the issued and outstanding shares
of Peoples Bank of California, a savings bank organized under the laws of the
United States of America (the "Bank");
WHEREAS, the Purchaser is a bank holding company within the meaning of the
Bank Holding Company Act of 1956, as amended ("BHCA");
WHEREAS, Purchaser desires to purchase the Shares and Seller is willing to
sell the Shares to Purchaser on the terms and conditions set forth herein (the
"Transaction");
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
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1.1 Purchase and Sale. At the Closing (as hereinafter defined), subject
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to the terms and conditions of this Agreement, the Seller shall sell to the
Purchaser all of the Shares, free and clear of any and all liens, pledges,
charges or encumbrances, and the Purchaser agrees to purchase all such Shares.
1.2 Delivery of Shares. Seller shall deliver to the Purchaser at Closing
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stock certificates representing all of the Shares. At the Closing, in
consideration for the purchase price described in Section 1.3 below, the Seller
shall deliver to the Purchaser said stock certificates duly endorsed in blank or
accompanied by duly executed stock powers.
1.3 Assignment of Rights. At the Closing, Seller shall transfer to
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Purchaser all of its rights under the Stockholders' Agreement dated as of April
20, 1998, as amended ("Stockholders' Agreement") by and among Seller, Holding
Company, Bank, the Trustees of the Estate of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇,
Inc., and (ii) the Shareholder Voting Agreement
dated as of April 28, 1998 (the "Voting Agreement") by and between Seller and
▇▇▇▇▇, Inc., and shall deliver such documents and instruments of assignment
related thereto as shall be reasonably satisfactory to Purchaser.
Notwithstanding anything else in this Agreement to the contrary, Seller makes no
representation or warranty with respect to the validity or enforceability of
such assignments. Nothing herein shall be deemed to imply that Seller is
assigning to Purchaser any of its rights under the Shareholder Rights Agreement
(as defined in Section 3.11).
1.4 Purchase Price. In consideration for delivery of the Shares, and
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subject to all of the terms and conditions of this Agreement, the Purchaser will
pay to the Seller in cash at the Closing an amount equal to $10 per Share
("Purchase Price Per Share") for each of the Shares delivered to Purchaser in
accordance with Section 1.2 above (the aggregate consideration of $19,122,720
for all Shares so delivered is referred to herein as the "Purchase Price").
ARTICLE II
CLOSING
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2.1 Closing. The consummation of the transactions contemplated by this
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Agreement shall take place at a closing (the "Closing") to be held on the
Closing Date. The Closing Date shall be as soon as practicable following the
receipt of all third party, governmental and regulatory consents and approvals
and the expiration of all applicable waiting periods in connection with any
regulatory or governmental approvals. The Closing shall take place at such time
and place as the Purchaser and the Seller may agree.
2.2 Extension of Closing Date. The Closing Date shall be no later than
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the 90/th/ day following the date of this Agreement; provided, however, that if
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the required approvals of any Applicable Governmental Authorities (as defined
below) have not been received within such 90 day period, the Closing Date shall
automatically be extended for an additional period of up to 60 days. Upon such
extension, Purchaser shall deposit an amount in cash equal to 5% of the Purchase
Price ($956,136) in an escrow account ("Escrowed Funds") established with San
Diego National Bank pursuant to an escrow agreement on terms mutually acceptable
to Purchaser and such escrow agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
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Seller represents and warrants to Purchaser as set forth below as of the
date of this Agreement and as of the Closing Date (as if such representations
and warranties were remade on the Closing Date):
3.1 Organization and Standing of Seller. Seller is a corporation duly
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organized, validly existing and in good standing under the laws of New Zealand.
Seller has the corporate
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power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted.
3.2 Due Authorization. Seller has full power and authority to enter into
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this Agreement and any related agreements, and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by the
Seller of this Agreement and any related agreements have been duly and validly
approved by all appropriate parties, and no other actions or proceedings on the
part of the Seller or any other person are necessary to authorize this
Agreement, any related agreements or the transactions contemplated hereby and
thereby. Subject to receipt of all necessary regulatory approvals, this
Agreement and any related agreements constitute the legal, valid and binding
obligations of the Seller, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect that affect
the enforcement of creditors' rights generally and by equitable limitations on
the availability of specific remedies.
3.3 Consents and Approvals. Except for any required consents and approvals
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of (i) the Office of Thrift Supervision ("OTS"), (ii) the Federal Deposit
Insurance Corporation (the "FDIC"), and (iii) the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") (collectively, "Applicable
Governmental Authorities"), and the filing of certain documentary material with
the Federal Trade Commission and the Assistant Attorney General pursuant to
Section 7a(c)(8) of the ▇▇▇▇▇▇▇ Act, no filing with, and no permit,
authorization, consent or approval of, any public body or authority is
necessary for the consummation by Seller of the transactions contemplated by
this Agreement.
3.4 Defaults and Conflicts. Subject to the receipt of all consents and
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approvals contemplated by this Agreement, neither the execution and delivery of
this Agreement, the consummation of the Transaction nor the fulfillment of and
compliance with the terms and provisions hereof, will (i) violate any judicial,
administrative or arbitration order, writ, award, judgment, injunction or decree
involving Seller, or (ii) conflict with the terms, conditions or provisions of
the charter or Bylaws of Seller. No consent of any third party to any indenture
or any agreement or other instrument to which Seller is a party is required in
connection with the Transaction.
3.5 Share Ownership.
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(a) To the best knowledge of Seller, the authorized capital stock of
the Holding Company consists of 75,000,000 shares of common stock, $0.01 par
value per share, of which 19,876,205 shares are outstanding. Seller is the
record and beneficial owner of 1,912,272 shares of common stock of the Holding
Company, representing 9.6% of the outstanding capital stock. All of such Shares
are validly issued, fully paid and nonassessable. Holding Company legally and
beneficially owns all of the issued and outstanding capital stock of the Bank.
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(b) Except for the Shares, Seller owns no shares of capital stock of
Holding Company, and except for the Stockholders' Agreement, the Voting
Agreement and the Shareholder Rights Agreement (as hereinafter defined), Seller
has no other debt or equity investment or interest in Holding Company or Bank.
Except for the Shareholder Rights Agreement, the Voting Agreement and the
Stockholders' Agreement, there are no outstanding contractual obligations
involving the Seller that relate to the purchase, sale, issuance, repurchase,
redemption, acquisition, transfer, disposition, holding or voting of any shares
of capital stock or other securities of the Holding Company or the Bank, and no
Person (as defined below) has any rights of first refusal or other rights of any
nature with respect to the Shares. Except as set forth in Schedule 3.5(b),
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the Certificates representing the Shares contain no restrictive legends.
(c) The assignments, endorsements, stock powers and other instruments
of transfer delivered by the Seller to the Purchaser at the Closing will be
sufficient to transfer all interests, legal and beneficial, in the Shares. The
Seller has, and on the Closing Date will have, full power and authority to
convey good and marketable title to all of the Shares. Upon transfer to the
Purchaser, the Purchaser will receive good and marketable title to such Shares,
free and clear of all liens, claims and encumbrances.
As used in this Agreement, "Person" shall mean any individual, corporation,
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proprietorship, firm, partnership, limited partnership, trust, governmental
authority, association or other entity.
3.6 Related Party Transactions. Except for the Stockholders' Agreement
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and the Shareholder Rights Agreement (as hereinafter defined) and except as
disclosed in Schedule 3.6, neither Holding Company nor Bank nor any of their
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subsidiaries or affiliates has made any loan to Seller or, to the best knowledge
of Seller, to any director, officer or other affiliate of Seller which remains
outstanding, nor has Holding Company, Bank nor any of their subsidiaries or
affiliates entered into any agreement with Seller, or to the best knowledge of
Seller, to any of its Affiliates, including without limitation, any agreement
for the purchase or sale of any property or services from or to any director,
officer or other affiliate of Seller.
3.7 Information for Regulatory Approvals. The information furnished or to
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be furnished by Seller in any regulatory application filed by Bank, Holding
Company or Purchaser in connection with the Transaction, will be true and
complete as of the date so furnished.
3.8 Finders and Investment Bankers. Seller has not retained any broker,
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finder or other agent or incurred any liability for any brokerage fees,
commissions or finders' fees with respect to the Transaction, except that Seller
will reimburse ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Associates and/or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for
services rendered with this Transaction.
3.9 Disclosure. No representation or warranty of Seller and no statement
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or information relating to Seller, Holding Company or Bank or their respective
businesses or properties contained in (i) this Agreement, (ii) the Schedules
hereto or (iii) in any written statement, certificate or document furnished or
to be furnished to Purchaser pursuant to this
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Agreement contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements
made herein or therein, in light of the circumstances in which they were made,
not misleading.
3.10 No Conflict of Interest. Other than under the Shareholder Rights
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Agreement, neither the Seller nor any of its Affiliates (as defined in Article
VI) has or claims to have any direct or indirect interest in any tangible or
intangible assets or liabilities or equity interests of the Holding Company or
Bank except as a holder of Shares. Except as disclosed on Schedule 3.10, neither
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Seller nor, to the best knowledge of Seller, any of its Affiliates has any
direct or indirect interest in any Person (except for the ownership of less than
1% of the outstanding stock of any publicly held corporation) which has any
contract or arrangement with, or does have business or is involved in any way
with, the Holding Company, Bank or any Subsidiary. Schedule 3.10 contains a
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complete and accurate description of all such Persons, interests, arrangements
and other matters.
3.11 Goodwill Litigation. Both the Holding Company and the Bank have been
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reimbursed for 100% of all costs and expenses incurred to date (including
attorneys' fees) directly or indirectly relating to or arising out of or in
connection with the so-called "Goodwill Litigation" (i.e, Southern California
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Federal Savings and Loan Association, et al. V, United States, No. 93-52C)
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pursuant to which the Holding Company, Bank and certain current and former
shareholders of the Holding Company are seeking damages against the United
States for breaching its commitment regarding the treatment of supervisory
goodwill. Both the Holding Company and the Bank will be fully reimbursed by
Seller for 30% of 95% of all future costs and expenses (including attorneys'
fees) directly or indirectly relating to or arising out of or in connection with
such Goodwill Litigation. Neither Holding Company nor Bank currently has or
will in the future have any liability for Seller's Proportionate Share (as
hereinafter defined) of damages, costs, expenses or other losses (including
attorneys' fees) directly or indirectly related to or arising out of or in
connection with the Goodwill Litigation or that certain Shareholder Rights
Agreement dated as of April 20,1998 ("Shareholder Rights Agreement") by and
among Seller, Holding Company, Bank, the Trustees of the Estate of ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇, Inc. As used in this Agreement, "Seller's
Proportionate Share" means (i) 30% of 95% of any such liability arising out of
any claim by a party now pending or hereafter brought, seeking in whole or in
part any amounts paid or to be paid by the United States in connection with the
Goodwill Litigation, and (ii) 30% at 100% of any such liability arising out of
any claim by a party other than the Holding Company or the Bank challenging the
validity or effect of the Shareholder Rights Agreement or otherwise directly or
indirectly related to or arising out of or in connection with the Goodwill
Litigation or Shareholder Rights Agreement (to the extent not covered by
subsection (i) above).
3.12 Agreements. Seller has delivered to Purchaser true and correct copies
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of the Stockholders' Agreement, the Voting Agreement and the Shareholder Rights
Agreement, together with any and all amendments thereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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Purchaser represents and warrants to Seller as set forth below as of the
date of this Agreement and as of the Closing Date (as if such representations
and warranties were remade on the Closing Date):
4.1 Organization of Purchaser. Purchaser is a corporation duly organized,
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validly existing and in good standing under the laws of Illinois.
4.2 Authorization. Purchaser has full power and authority to enter into
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this Agreement and any related agreements and, subject to obtaining all required
regulatory approvals, to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by the Purchaser of this
Agreement and any related agreements have been duly and validly approved by the
board of directors of Purchaser, and no other actions or proceedings on the part
of the Purchaser or any other person are necessary to authorize this Agreement,
any related agreements or the transactions contemplated hereby and thereby.
Subject to receipt of all necessary regulatory approvals, this Agreement and any
related agreements constitute the valid and legally binding obligations of
Purchaser, enforceable against it in accordance with their respective terms,
except as such enforceability may be limited by applicable to bankruptcy,
receivership, insolvency, reorganization, moratorium or similar laws affecting
or relating to creditors rights generally and subject to general principles of
equity.
4.3 Consents and Approvals. Except for any required consents and
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approvals of the Applicable Governmental Authorities, and the filing of certain
documentary material with the Federal Trade Commission and the Assistant
Attorney General pursuant to Section 7a(c)(8) of the ▇▇▇▇▇▇▇ Act, no filing
with, and no permit, authorization, consent or approval of, any public body or
authority is necessary for the consummation by Purchaser of the transactions
contemplated by this Agreement.
4.4 Defaults and Conflicts. Subject to the receipt of all consents and
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approvals contemplated by this Agreement, the execution and delivery of this
Agreement, the consummation of the Transaction or the fulfillment of and
compliance with the terms and provisions hereof will not (i) violate any
judicial, administrative or arbitration order, writ, award, judgment,
injunction or decree involving Purchaser, or (ii) conflict with any of the
terms, conditions or provisions of the Articles of Incorporation or Bylaws of
Purchaser. No consent of any third party to any indenture or any material
agreement or other material instrument to which Purchaser is a party is required
in connection with the Transaction.
4.5 Finders and Investment Bankers. Purchaser has not retained any
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broker, finder or other agent or incurred any liability for any brokerage fees,
commissions or finders' fees with respect to the Transaction.
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ARTICLE V
INFORMATION
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From the date hereof until the Closing Date, Seller shall provide Purchaser
with all information and reports relating to the Holding Company, Bank or other
Subsidiaries received by Seller in its capacity as a shareholder of the Company,
and shall provide Purchaser with other information and reports received by
Seller in any other capacity to the extent not otherwise specifically prohibited
by applicable law.
ARTICLE VI
COVENANTS OF SELLER
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6.1 Exclusivity.
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(a) Unless otherwise specifically prohibited by applicable law,
without the prior written consent of Purchaser, Seller shall not, directly or
indirectly, solicit, initiate, encourage or respond favorably to inquiries or
proposals from, or participate in any discussions or negotiations with, any
person (other than Purchaser and its directors, officers, employees,
representatives and agents) concerning (i) any merger, sale of assets not in the
ordinary course of business, acquisition, business combination, change of
control or other similar transaction involving Holding Company or Bank, or (ii)
any purchase or other acquisition by any person of the Shares or any shares of
capital stock of Bank, or (iii) any issuance by Holding Company or Bank of any
shares of its capital stock.
(b) Unless otherwise specifically prohibited by applicable law,
Seller will promptly advise Purchaser of, and communicate to Purchaser the terms
and conditions of (and the identity of the person making), any such inquiry or
proposal received, and will promptly furnish Purchaser with copies of any
documents received and summaries of any other communications with respect
thereto. Seller will cease any such existing activities, discussions or
negotiations with any Person conducted heretofore with respect to any of the
foregoing.
As used in this Agreement, the term "Affiliate" shall mean, with respect to
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any specified person, (1) any other person which, directly or indirectly, owns
or controls, is under common ownership or control with, or is owned or
controlled by, such specified person, (2) any other person which is a director,
officer or partner or is, directly or indirectly, the beneficial owner of 5
percent or more of any class of equity securities, of the specified person or a
person described in clause (1) of this paragraph, (3) another person of which
the specified person is a director, officer or partner or is, directly or
indirectly, the beneficial owner of 5 percent or more of any class of equity
securities, (4) another person in which the specified person has a substantial
beneficial interest or as to which the specified person serves as trustee or in
a similar capacity, or (5) any relative or spouse of the specified person or any
of the foregoing persons, any relative of such spouse or any spouse of any such
relative.
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6.2 Actions of Seller. Seller agrees that unless this Agreement is
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terminated in accordance with the provisions hereof, (i) Seller will not acquire
any additional shares of the capital stock of Holding Company (other than stock
dividends, if any, declared and paid by Holding Company on the Shares, which
stock dividends shall be included for all purposes hereunder in the definition
of Shares), (ii) Seller will not encumber any of the Shares, (iii) Seller will
not sell or offer to sell any of the Shares to any Person other than the
Purchaser, (iv) Seller will not take any other action which could have the
effect of preventing or disabling the performance by either of such parties of
their respective obligations under this Agreement, or which could materially and
adversely affect the rights of Purchaser hereunder.
6.3 Notice. Seller shall give prompt notice to Purchaser of any notice
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or other communication from any third party alleging that the consent of such
third party is or may be required in connection with the transactions
contemplated hereby.
6.4 Supplemental Information; Disclosure Supplements. From time to time
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prior to the Closing Date, Seller will promptly disclose in writing to Purchaser
any matter hereafter arising which, if existing, occurring or known at the date
of this Agreement would have been required to be disclosed by Seller or which
would render inaccurate any of the representations, warranties or statements of
Seller set forth in this Agreement. From time to time prior to the Closing Date,
Seller will promptly supplement or update any Schedule delivered in connection
with the execution of this Agreement to reflect any matter which, if existing,
occurring or known at the date of this Agreement, would have been required to be
set forth or described in such Schedule or which is necessary to update any
information in such Schedule.
ARTICLE VI-A
COVENANTS OF PURCHASER
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6.A.1 Limitation on Additional Purchases. Without the prior written
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consent of Seller, for a period of 90 days following the date of this Agreement,
Purchaser will not acquire record or beneficial ownership of any of the
outstanding common stock of the Holding Company for a price in excess of $10 per
share.
6.A.2 Share of Profits. In the event that Purchaser sells any of the
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Shares acquired hereunder during the 90 day period following the Closing Date
("Subsequent Sale"), Purchaser agrees to pay to Seller an amount equal to 50% of
the amount by which the price per share in the Subsequent Sale exceeds $10 per
share. In the event the consideration received by Purchaser for the Shares is
not in cash, Purchaser shall transfer 50% of the consideration so received to
Seller.
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6.A.3 Supplemental Information. From time to time prior to the Closing
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Date, Purchaser will promptly disclose in writing to Seller any matter hereafter
arising which, if existing, occurring or known at the date of this Agreement
would have been required to be disclosed by Purchaser or which would render
inaccurate any of the representations, warranties or statements of Purchaser
set forth in this Agreement.
6.A.4 Application. As promptly as practicable following the execution of
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this Agreement, Purchaser agrees to prepare and file any required application
with the Federal Reserve Board for approval to consummate the Transaction
described in this Agreement, and to make any required filing with the Federal
Trade Commission and Assistant Attorney General required pursuant to Section
7a(c)(8) of the ▇▇▇▇▇▇▇ Act.
ARTICLE VII
COOPERATION
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7.1 Reasonable Efforts. Subject to the terms and conditions hereof and
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the parties' respective rights to terminate this Agreement, each party hereto
shall use its reasonable efforts to take all action required of it to fulfill
its obligations under the terms of this Agreement and to facilitate the
satisfaction of the conditions to and the consummation of the transactions
contemplated hereby. The Seller and the Purchaser will cooperate with each other
in securing all the necessary approvals, regulatory or otherwise, needed to
consummate the transactions contemplated herein.
ARTICLE VIII
CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE PURCHASER
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The obligations of the Purchaser hereunder shall be subject to the
satisfaction (or written waiver by the Purchaser) on or before the Closing Date
of each condition precedent set forth in this Agreement and to all of the
following additional conditions:
8.1 Representations, Warranties and Covenants. The representations and
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warranties of the Seller contained herein shall have been accurate, true,
correct and complete on and as of the date of this Agreement, and shall also be
accurate, true, correct and complete on and as of the Closing Date with the same
force and effect as though made by the Seller on and as of the Closing Date. The
Seller shall have performed all agreements and covenants required by this
Agreement to be performed by it on or prior to the Closing Date. The Purchaser
shall have received a Certificate, dated as of the Closing Date and signed by
the Seller, to the foregoing effect, together with a certificate showing the
incumbency and signatures of officers authorized to execute documents on behalf
of Seller in connection with the Transaction.
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8.2 Adverse Changes. During the period from the date of this Agreement to
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the Closing Date, there shall not have been, as determined in the sole
discretion of the Purchaser, any material adverse changes involving an aggregate
amount in excess of $750,000 in the business, operations, results of operations,
assets, liabilities, capital, investments, properties, condition (financial or
otherwise), affairs, prospects or other attributes of the Holding Company or
the Bank, or any of the Subsidiaries; provided however that changes in the fair
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value of loans receivable, due solely to the use of current interest rates for
discounting future cash flows at which loans with similar terms would be made
secured by property and to borrowers with similar credit and other
characteristics and with similar remaining terms to maturity, will not be
considered a material adverse change for purposes of this section.
8.3 Absence of Litigation. There shall not be pending or threatened any
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action or proceeding seeking to restrain, enjoin, prohibit, or obtain damages in
connection with or related to any part of this Agreement or any related
agreement between Seller and Purchaser.
8.4 Certificates. Certificates representing 1,912,272 shares of common
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stock of the Holding Company which shall represent approximately 9.6% of the
outstanding common stock of the Holding Company shall have been properly
tendered and delivered to Purchaser, together with stock powers duly executed in
blank.
8.5 Schedules. Purchaser shall have received all of the Schedules
---------
referred to herein, which Schedules shall be acceptable to Purchaser, and if
such Schedules are updated prior to the Closing Date, such Schedules shall be
acceptable to Purchaser in its sole discretion, reasonably exercised.
8.6 Closing Date. The Closing Date shall be no later than the 90/th/
------------
day following the date of this Agreement, subject to an additional 60-day
extension as described in Section 2.2 hereof.
8.7 Regulatory Approvals. To the extent required by applicable law or
--------------------
regulation, all approvals of any governmental or regulatory authority required
in connection with the acquisition of shares of the Holding Company by Purchaser
will have been obtained, which approvals will be acceptable to Purchaser in form
and substance in its sole discretion, and all necessary waiting periods under
federal or state law will have expired. All other statutory or regulatory
requirements for the valid consummation of the transactions contemplated hereby
will have been satisfied.
8.8 Transfer of Securities. Seller, at its expense, shall have delivered
----------------------
to Purchaser (i) an opinion of counsel reasonably acceptable to Purchaser
regarding Seller's ability to transfer the Shares pursuant to an available
exemption from the securities laws, and (ii) evidence satisfactory to Purchaser
that such opinion is satisfactory to the Holding Company. Alternatively, Seller
shall deliver to Purchaser satisfactory evidence that Holding Company has waived
the requirement for an opinion of counsel.
10
8.9 Stockholders' Agreement; Voting Agreement. Seller shall have delivered
-----------------------------------------
to Purchaser satisfactory documents of assignment and transfer with respect to
the assignment by Seller of its rights under the Stockholders' Agreement and the
Voting Agreement.
8.10 Other Documents. The Purchaser shall have received all such other
---------------
documents, certificates or instruments as it reasonably may request.
ARTICLE IX
CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE SELLER
-------------------------
The obligations of the Seller hereunder shall be subject to the
satisfaction (or written waiver by the Seller) on or before the Closing Date of
each condition precedent set forth in this Agreement and to all of the following
additional conditions:
9.1 Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of the Purchaser contained herein shall have been accurate, true,
correct and complete on and as of the date of this Agreement, and shall also be
accurate, true, correct and complete on and as of the Closing Date with the same
force and effect as though made by the Purchaser on and as of the Closing Date.
The Purchaser shall have performed in all material respects all agreements and
covenants required by this Agreement to be performed by it on or prior to the
Closing Date. The Seller shall have received a Certificate, dated as of the
Closing Date and signed by an officer of the Purchaser, to the foregoing effect,
together with a certificate showing the incumbency and signatures of officers
authorized to execute documents on behalf of Purchaser in Connection with the
Transaction.
9.2 Absence of Litigation. There shall not be pending or threatened any
---------------------
action or proceeding seeking to restrain, enjoin, prohibit, or obtain damages in
connection with or related to any part of this Agreement or any related
agreement between Seller and Purchaser.
9.3 Closing Date. The Closing Date shall be no later than the 9O/th/ day
------------
following the date of this Agreement, subject to an additional 60-day extension
as described in Section 2.2 hereof.
ARTICLE X
TERMINATION
-----------
10.1 Termination.
-----------
This Agreement may be terminated at the option of the applicable party
at any time prior to the Closing:
11
(i) by written agreement of the Purchaser and the Seller;
(ii) by the Purchaser, by written notice to the Seller if any of the
conditions set forth in Article VIII have not been satisfied as of the
Closing Date;
(iii) by the Seller by written notice to the Purchaser if any of the
conditions set forth in Article IX have not been satisfied as of the
Closing Date;
(iv) by any of the Seller or the Purchaser, if the Closing shall not
have taken place on or before the 90/th/ day following the date of this
Agreement, subject to an additional 60-day extension as described in
Section 2.2 hereof; provided, however, that the right to terminate this
-------- -------
Agreement under this Section 10.1(iv) shall not be available to any party
whose failure to fulfill any obligation under this Agreement has been the
cause of or resulted in the failure of the Closing to occur on or before
such date;
(v) by the Purchaser, if there shall have been a breach of any
covenant, representation or warranty of the Seller, provided, however that
-------- -------
in the event that Purchaser desires to terminate the Agreement based on an
alleged breach of a covenant, representation or warranty, Purchaser must
notify the Seller in writing of its intent to terminate, stating the reason
therefor. The alleged breaching party shall have thirty (30) days from the
date of receipt of such notice to cure the alleged breach, subject to the
approval of Purchaser (which approval shall not be unreasonably withheld or
delayed);
(vi) by the Seller, if there shall have been a breach of any
covenant, representation or warranty of the Purchaser hereunder; provided,
--------
however, that in the event that the Seller desires to terminate the
-------
Agreement based on an alleged breach of a covenant, representation or
warranty, such party must notify the Purchaser in writing of its intent to
terminate, stating the reason therefor. The alleged breaching party shall
have thirty (30) days from the date of receipt of such notice to cure the
alleged breach, subject to the approval of the Seller (which approval shall
not be unreasonably withheld or delayed); or
(v) by the Purchaser by written notice to Seller if any Applicable
Governmental Authority shall have denied or refused to grant the approvals
or consents required to be obtained pursuant to this Agreement, unless
Purchaser in its sole discretion agrees to submit or resubmit an application
to, or appeal the decision of, the regulatory authority which denied or
refused to grant approval thereof.
10.2 Effect of Termination. If this Agreement is terminated pursuant to
---------------------
Section 10.1, all obligations of the parties hereunder shall terminate, except
for the obligations set forth in Section 12.2 and Section 12.17, which shall
survive the termination of this Agreement, and except that no such termination
shall relieve any party from liability for any prior willful breach of this
Agreement.
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10.3 Breach; Specific Performance. If the transactions contemplated by
----------------------------
this Agreement have not been consummated as a result of a breach of this
Agreement by the Seller, the parties agree that the Purchaser shall be entitled,
at its option and in addition to any other available legal and equitable
remedies, to specific performance of this Agreement. Seller agrees that the
purchaser shall be entitled to an injunction or injunctions to prevent breaches
of the provisions of this Agreement and to enforce specifically this Agreement
and the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the parties and the
matter, in addition to any other remedy to which it may be entitled, at law or
in equity.
ARTICLE XI
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES, INDEMNIFICATION
-------------------------------
11.1 Survival of Representations and Warranties. The representations and
------------------------------------------
warranties of the parties herein contained, unless waived in writing, will
survive the Closing and the consummation of any or all of the transactions
contemplated hereby. All covenants not fully performed as of the Closing will
survive the Closing.
11.2 Indemnification. The Seller agrees to indemnify and hold Purchaser
---------------
harmless from and against any and all losses, liabilities, actions, obligations,
damages, claims, deficiencies, costs and expenses (including reasonable
attorneys' fees) (collectively, the "Adverse Consequences") which may be
incurred by the Purchaser directly or indirectly (whether arising out of
its ownership of the Shares or otherwise) by reason of the breach by the Seller
of any representation, warranty, covenant or obligation of the Seller to
Purchaser under this Agreement. Without limiting the generality of the
foregoing, Seller specifically agrees to;
(A) indemnify Purchaser for all Adverse Consequences incurred by the
Purchaser directly that arise out of, relate to or are in connection with
(i) the Goodwill Litigation, (ii) the Shareholder Rights Agreement and
(iii) any other third-party 1awsuits or other matters directly or
indirectly arising out of or related to either of the foregoing, including
but not limited to that certain lawsuit brought by Ariadne Financial
Services Pty. Ltd. and Memvale Pty. Ltd. (the "Ariadne Suit"); and
(B) indemnify Bank and Holding Company for Seller's Proportionate
Share of any Adverse Consequences incurred by Bank or Holding Company
directly or indirectly arising out of, relating to or in connection with
(i) the Goodwill Litigation, (ii) the Shareholder Rights Agreement and
(iii) any other third-party lawsuits or other matters directly or
indirectly arising out of or related to either of the foregoing, including
but not limited to the Ariadne Suit.
13
ARTICLE XII
MISCELLANEOUS
-------------
12.1 Binding Effect. All covenants, agreements, representations and
--------------
warranties of the parties contained herein shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, permitted
assigns, and legal representatives.
12.2 Expenses. Each party hereto will bear its own expenses, costs
--------
and fees incurred or assumed in connection with the transactions contemplated
hereby.
12.3 Notices. Any notice, request, instruction or other document to
-------
be given hereunder by a party hereto shall be in writing and shall be deemed to
have been given, (a) when received if given in person, by Federal Express,
courier or a courier service, or by registered or certified mail or (b) on the
date of transmission if sent by telex, facsimile or other wire transmission (or
to such other Persons or at such other addresses as shall be given in like
manner by any party to the others):
To the Purchaser: FBOP Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Lord, Bissell & Brook
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: 312-443-0336
To the Seller: BIL Securities (Offshore) Ltd.
c/▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Associates
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
14
with a copy to: BIL Securities (Offshore) Ltd.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇/▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
12.4 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument. If executed copies of
this Agreement are forwarded by a party via facsimile to the other party, the
original of such signatures shall be delivered to such other party within two
business days of the date of this Agreement.
12.5 Captions. Captions and paragraph headings used herein are for
--------
convenience only and are not a part of this Agreement and shall not be used in
construing or interpreting any provision hereof.
12.6 Amendments, Supplements or Modifications. This Agreement may only
----------------------------------------
be amended by a written agreement signed by each of the parties hereto.
12.7 Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the internal laws of the State of Illinois, except to the extent
certain matters may governed as a matter of law by the laws of the United
States of America.
12.8 Construction of America. When permitted by the context, the singular
-----------------------
includes the plural and vice versa. The use of the masculine, feminine or neuter
gender herein shall not limit any provision of this Agreement. The use of the
terms "including" or "include" shall in all cases herein mean "including,
without limitation" or "include, without limitation" respectively. Underscored
references to Articles, Sections, Subsections or Schedules shall refer to those
portions of this Agreement. Consummation of the transactions contemplated herein
shall not be deemed a waiver of a breach of or an inaccuracy in any
representation, warranty or covenant or of any party's rights and remedies with
regard thereto. No specific representation, warranty or covenant contained
herein shall limit the generality or applicability of a similar or more general
representation, warranty or covenant contained herein. A breach of or an
inaccuracy in any representation, warranty or covenant shall not be affected by
the fact that any similar or more or less specific representation, warranty or
covenant was not also breached or inaccurate.
12.9 Effect of Investigation. Any due diligence review, audit or other
-----------------------
investigation or inquiry undertaken or performed by or on behalf of the
Purchaser shall not limit, qualify, modify or amend the representations,
warranties or covenants of, or indemnities by, the Seller made or undertaken
pursuant to this Agreement, irrespective of the knowledge and information
received (or which should have been received) therefrom by the Purchaser.
15
12.10 Waivers. The failure of a party hereto at any time or times to
-------
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any condition or of
any breach of any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
12.11 Assignment. This Agreement shall be binding upon and inure to
----------
the benefit of the parties hereto and their respective successors and assigns;
provided, however, that no assignment of any rights or obligations shall be made
by the Seller without the written consent of the Purchaser, or by the Purchaser
without the written consent of the Seller, except that the Purchaser may assign
its rights hereunder without such consent to any wholly-owned subsidiary of the
Purchaser.
12.12 No Third Party Beneficiaries. This Agreement is solely for the
----------------------------
benefit of the parties hereto and, to the extent provided herein, their
respective Affiliates, directors, officers, employees, agents and
representatives, and no provision of this Agreement shall be deemed to confer
upon other third parties any remedy, claim, liability, reimbursement, cause of
action or other right, except with respect to Seller's obligation to indemnify
the Holding Company and Bank pursuant to Section 11.2 hereof.
12.13 Severability. If any provision of this Agreement shall be held
------------
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
12.14 Remedies Cumulative. The remedies provided in this Agreement
-------------------
shall be cumulative and shall not preclude the assertion or exercise of any
other rights or remedies available by law, in equity or otherwise.
12.15 Entire Agreement. This Agreement (together with the Schedules
----------------
hereto and the documents referred to herein) contains, and is intended as, a
complete statement of all of the terms of the arrangements between the parties
with respect to the matters provided for herein, and supersedes any previous
agreements and understandings between the parties with respect to those matters.
12.16 Schedules. All information set forth in the Schedules hereto
---------
shall be deemed a representation and warranty of Seller as to the accuracy and
completeness of such information.
12.17 Press Releases; Confidentiality. Neither party will make any
-------------------------------
publicity release concerning this Agreement or the transactions contemplated
hereby without advance written approval thereof by the other party. Each party
agrees to cooperate with the other in the
16
development and distribution of all news releases with respect to this
Agreement, the Transaction or any of the transactions contemplated hereby or
thereby. Unless otherwise agreed by Purchaser in writing, Seller will, and will
cause its Affiliates to, at all times keep the existence of the Transaction,
this Agreement and the terms and conditions of this Agreement confidential, and
further agrees not to disclose to any Person any nonpublic information regarding
the Purchaser. Seller will immediately, and in any event within three business
days, notify Purchaser if Seller has received any request or demand for
disclosure of any information protected hereunder that is purported to be
required by legal process, applicable law or regulation. Seller will provide
Purchaser with copies of such request or demand so that Purchaser may seek a
protective order or other appropriate remedy. Seller further agrees to cooperate
with Purchaser in its attempt to maintain the confidentiality of the information
sought. If Purchaser is unable to obtain a protective order or other remedy,
Seller may disclose such confidential information if in the written opinion of
counsel Seller is required to do so. In such event, Seller may disclose only the
information actually required to be disclosed pursuant to such legal process or
applicable law or regulation.
17
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the date first above written.
BIL SECURITIES (OFFSHORE) LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Title: AUTHORIZED AGENT
----------------------
FBOP CORPORATION
By:__________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the Board
18
